Citation Nr: 0001375
Decision Date: 01/14/00 Archive Date: 01/27/00
DOCKET NO. 97-20 349 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependents' Educational Assistance under
the provisions of Chapter 35, Title 38, United States Code.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Hinton, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to
October 1945, and died on March [redacted], 1997. The
appellant is the veteran's widow.
This appeal arises from an April 1997 decision by the
Wichita, Kansas, Department of Veterans Affairs (VA) Regional
Office (RO) that denied service connection for the cause of
the veteran's death. This case was previously remanded by
the Board in April 1998 in order to obtain additional
clarifying medical data. That development has been completed
to the extent possible, and the case is once more before the
Board for appellate consideration.
FINDINGS OF FACT
1. The veteran's certificate of death shows that he died in
March 1997. The cause of death is listed as pulmonary edema
and heart failure; due to or as a consequence of hypertensive
cardiovascular disease; due to or as a consequence of
essential hypertension. The certificate notes that other
significant conditions contributing to the veteran's death
but not resulting in the underlying cause of death were a
right leg gunshot wound leading to right leg weakness and
ultimately to hypertension, a hip fracture and a stroke.
2. At the time of the veteran's death service connection was
in effect for residuals of a severance of the right common
peroneal nerve group, with foot drop and atrophy of muscles
of the lower right leg, and anesthesia over the dorsum of the
right foot, evaluated as 40 percent disabling; and for
gunshot wound scars of the right leg, evaluated as 10 percent
disabling.
3. Neither pulmonary edema, heart failure, hypertensive
cardiovascular disease or essential hypertension was present
during service or for many years thereafter, and none of
these disorders is causally related to service or a service-
connected disability.
4. A service-connected disability is not shown to have
hastened, produced or been causally or etiologically related
to the veteran's death.
5. There is no evidence to show that the veteran had a
permanent and total service-connected disability, or that the
veteran had a permanent and total disability at the time of
his death, or that the veteran died as a result of a service-
connected disability.
CONCLUSIONS OF LAW
1. A service-connected disability did not cause or
contribute substantially or materially to cause death. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107(a) (West
1991); 38 C.F.R. §§ 3.307, 3.309, 3.310, 3.312 (1999).
2. The requirements for eligibility for Dependents'
Educational Benefits under Chapter 35, Title 38, United
States Code, have not been met. 38 U.S.C.A. §§ 3501, 3510
(West 1991); 38 C.F.R. §§ 3.807, 21.3021 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, the Board finds that the appellant's
claim is plausible and capable of substantiation and is
therefore well grounded within the meaning of 38 U.S.C.A. §
5107(a). The Board is also satisfied that all relevant facts
have been properly developed and no further assistance to the
appellant is required in order to comply with the duty to
assist. Id.
The appellant contends that service connection for the cause
of the veteran's death is warranted. Essentially, she
maintains that the veteran's service-connected residuals of a
gunshot wound contributed substantially to the cause of his
death.
The law provides that service connection may be granted for
disabilities resulting from a disease or injury incurred or
aggravated during active service. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. § 3.303 (1999). The death of a veteran will
be considered as having been due to a service-connected
disability when the evidence establishes that such disability
was either the principal or a contributory cause of death.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). Service-connected
diseases or injuries involving active processes affecting
vital organs receive careful consideration as a contributory
cause of death, the primary cause being unrelated, from the
viewpoint of whether there were resulting debilitating
effects and general impairment of health to an extent that
would render the person materially less capable of resisting
the effects of other disease or injury primarily causing
death. 38 C.F.R. § 3.312(c)(3). Further, there are primary
causes of death which by their very nature are so
overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. 38 C.F.R. § 3.312(c)(4).
The veteran's certificate of death shows that he died in
March 1997. The certificate of death lists as the cause of
death, pulmonary edema and heart failure; due to or as a
consequence of hypertensive cardiovascular disease; due to or
as a consequence of essential hypertension. The certificate
notes that other significant conditions contributing to the
veteran's death but not resulting in the underlying cause of
death were a right leg gunshot wound leading to right leg
weakness and ultimately to hypertension, a hip fracture and a
stroke.
At the time of the veteran's death, service connection was in
effect for residuals of a severance of the right common
peroneal nerve group, with foot drop and atrophy of muscles
of the lower right leg, and anesthesia over the dorsum of the
right foot, evaluated as 40 percent disabling; and for
gunshot wound scars of the posterior upper right thigh,
evaluated as 10 percent disabling.
The veteran's service medical records are negative for any
evidence of pulmonary edema, heart failure, hypertensive
cardiovascular disease or essential hypertension, nor is
there any evidence of heart disease within the first year of
service separation. See 38 U.S.C.A. § 1112; 38 C.F.R. §§
3.307; 3.309. In fact, following separation from service,
the record is devoid of any medical evidence referable to
these disorders until approximately 1972, when private
progress notes show a diagnostic impression of probably
essential hypertension. The Board has reviewed the medical
evidence of record reflecting treatment during the years
prior to the veteran's death, but there is simply no evidence
that any cardiovascular or heart disease was clinically
manifested during the veteran's active service, or to a
compensable degree during the first post-service year.
Because the appellant has neither asserted nor submitted
evidence that a cardiovascular or heart disorder developed
during service or within the presumptive period, there is no
need to further address this matter.
Rather the appellant contends that the veteran's service-
connected residuals of a gunshot wound caused stress that
stressed the heart, causing heart disease and subsequent
heart attack that caused his death. Although a basis for
establishing service connection for the cause of the
veteran's death on a direct basis has not been demonstrated,
applicable law also contemplates service connection on a
secondary basis. Disability which is proximately due to or
the result of a service-connected disease or injury shall be
service-connected. 38 C.F.R. § 3.310(a) (1999).
The claims file contains private medical records showing
treatment for various disorders, from August 1972 to March
1995. There are also VA and private medical reports
documenting hospitalization and treatment from April to July
1995, after the veteran had a myocardial infarction in early
April 1995. At the time of that event, the veteran was
resuscitated and was in a coma for three days and had hypoxic
encephalopathy. During the period from April to July 1995,
the clinical records show that he was treated for cardiac
arrest and hypoxic encephalopathy; and that he fell in April
1995 during VA hospitalization and sustained a fracture of
the right hip, for which he underwent surgical treatment in
May 1995. The records also document that the veteran had a
stroke in May 1995. The report of VA hospitalization in July
1995 contains a principal diagnosis of treated
unresponsiveness, resolved. At that time other pertinent
treated diagnoses included hypoxic encephalopathy following
myocardial infarction, April 1995; chronic atrial
fibrillation; hypertension; and chronic obstructive pulmonary
disease. The report contains a notation of pertinent
clinical diagnoses noted but not treated, which included
right hip fracture with repair and prosthesis; and
claudication of lower extremities.
The veteran was examined by VA in August 1995 VA for diseases
of arteries and veins, and for joints. The report of the
arteries and veins examination recorded the veteran's medical
history, including for his service-connected gunshot wound
disability, and other disorders. After examination, the
report contains diagnoses of history of claudication, with
recent history of deep vein thrombosis in the left calf;
history of hypertension; history of myocardial infarction,
April 1995; history of cerebrovascular accident, with organic
brain syndrome, speech and peripheral vision complications,
and mental confusion; history of right hip fracture with ball
replacement; and residual gunshot wound, right buttocks, with
peroneal nerve involvement, with consequential right foot
drop.
The veteran was examined by VA in August 1995 VA for joints,
and in September 1995 for peripheral nerves.
In support of the appellant's claim, she has provided several
private medical statements. A December 1995 letter from Dr.
Bauer states that the veteran had a cardiac arrest in April
1995, which left him with a hypoxemic encephalopathy from
which he never recovered. Dr. Bauer opined that the
veteran's service-connected gunshot wound disability left him
with claudication in the right lower extremity. This, in
turn led to stresses that contributed to a heart disease,
which ultimately led to the cardiac arrest in April 1995.
A February 1997 letter from Norman C. Bos, M.D., stated that
the veteran's service-connected injury contributed
significantly to degenerative changes in the left knee, and
that associated weakness and instability in both lower
extremities contributed to the fall in which the veteran
sustained a fracture of the right hip.
A March 1997 letter from Joseph E. McMullen, M.D., stated
that it was safe to say that the veteran's severance of the
common peroneal nerve with foot drop atrophy of muscles in
the right lower extremity lead to his fall, which resulted in
a fracture of the right hip. Dr. McMullen stated that he
thought it possible that this additional stress lead to, or
aggravated the veteran's heart problems as well as his left
lower extremity condition.
A March 1997 statement from Dr. Bauer contains an opinion
that the veteran's high blood pressure was in some degree
related to his service-connected disability, in that the
veteran's service-connected gunshot wound disability caused
stresses that made ordinary ambulatory activity more
difficult. Dr. Bauer also opined that the veteran sustained
a major cerebral thrombosis, which left the veteran with a
left hemiparesis, and this was also related to the high blood
pressure. Dr. Bauer further opined that the hip fracture was
related to the preexisting weakness in the right lower
extremity, which resulted from the gunshot wound during
service. Dr. Bauer opined that while he could not offer his
opinion with certainty, that it was reasonable to assume that
there was some degree of cause and effect that the veteran's
present disability was to an extent, service related.
A March 1997 private clinical note by Dr. Bauer dated on the
day of the veteran's death, indicated that the veteran was
dying from his stroke and carcinoma of the kidney. The note
stated that the stroke was triggered, at least in part, by
the veteran's high blood pressure and war injury gunshot
wound of the right lower extremity.
The Board notes that the claims file contains an April 1997
medical opinion from a VA medical advisor to the RO rating
board. The Board has placed no reliance on this opinion,
however, as the United States Court of Appeals for Veterans
Claims (the United States Court of Veterans Appeals prior to
March 1, 1999) has held that such opinion raises the question
as to whether there was a fair process to insure an impartial
opinion, and may create the impression that the rating board
was not securing evidence to determine the correct outcome
but rather to support a predetermined outcome. See Austin v.
Brown, 6 Vet. App. 547 (1994).
During a July 1997 hearing, the appellant testified that the
veteran's service-connected disability caused the veteran to
favor his right side, and put pressure on the left leg. The
added pressures over the years contributed to some of the
conditions that caused his death. The pain in the right calf
and resulting increased reliance on the left leg created a
stressful condition that progressed and affected the heart.
This eventually lead to a heart condition and heart attack in
April 1995.
Pursuant to its April 1998 remand, the Board requested that a
VA orthopedist and cardiologist review the claims file and
provide an opinion as to whether it was at least as likely as
not that the veteran's service-connected right peroneal nerve
injury due to a right lower extremity gunshot, and/or his
right lower extremity gunshot wound scars caused his death,
or contributed substantially and materially to the cause of
his death.
In a June 1999 VA cardiology opinion, the examiner stated
that he had reviewed the chart on the veteran; medical
statements from Drs. Norman, Bos, McMullen and Bauer; and the
record of VA hospitalization from June to December 1995. The
examiner recounted the veteran's medical history associated
with his inservice gunshot wounds to the right buttock and
peroneal nerve damage, which resulted in a right foot drop.
The examiner also noted a history of systemic hypertension
for several years of unclear duration. The examiner also
discussed the recent medical history beginning with the
veteran's April 1995 myocardial infarction, and subsequent
symptomatology and treatment until the veteran's death in
March 1997.
The examiner noted that the record appeared to show a claim
that the service-connected gunshot wound disability resulted
in development of claudication of the right lower extremity;
and that this in turn lead to stresses that contributed to
heart disease and ultimately to cardiac arrest in April 1995,
as well as to high blood pressure. In addressing this claim,
the examiner noted that the veteran had atherosclerotic
cardiovascular and cerebrovascular disease, as well as
arteriosclerotic peripheral vascular disease. The examiner
noted that the major risk factors for these conditions were
family predisposition, smoking, hypercholestero-lemia,
diabetes and systemic hypertension. The examiner opined that
the possibility that stress resulting from the veteran's
gunshot wound disability played a factor in causing
hypertension atherosclerosis and peripheral vascular disease,
could not be excluded. He opined that the connection,
however, was speculative and could not be directly proven.
His opinion was that any such stress would not be directly
responsible for development of the circulatory and
cardiovascular diseases, and would only be a marginal
contributory factor. The examiner's concluding opinion was
that the service connected right peroneal nerve injury and
gunshot wound scars did not contribute substantially and
materially to the cause of the veteran's death by way of a
relationship with the cardiovascular conditions.
In an August 1999 VA general medical opinion, the examiner
recorded that he had reviewed the veteran's chart. The
opinion noted that the veteran had sustained a gunshot injury
in the right buttock, which resulted in a right perineal
palsy. The examiner recounted the subsequent medical history
related to the development of bilateral intermittent
claudication from a vascular nature; and bilateral bow leg,
which was noted to be unrelated to the inservice injury
sustained to the right buttock. The examiner opined that the
vascular occlusion had no bearing and no relation to injury
sustained to the right buttock in service. The examiner
noted that the veteran later developed a vascular problem
from a cerebral nature and from a cardiac nature. On review
of the chart, the examiner opined that there was no evidence
of any connection between the gunshot wound disability, and
the deterioration of the veteran's health, by which he
indicated he was referring to the arterial occlusion and the
heart and cerebral problems.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the appellant's
claim for service connection for the cause of the veteran's
death. The Board has carefully considered the opinions
contained in statements from Dr. Bauer, Dr. Bos, Dr.
McMullen, and Dr. Norman. The essential opinion in favor of
the claimant is that the veteran's high blood pressure was to
some degree related to his service-connected gunshot wound
disabilities, in that service-connected disability caused
stresses that made ordinary ambulatory activity more
difficult, resulting in high blood pressure and heart
disease, and ultimately the veteran's death.
However, the Board finds this opinion to be speculative,
especially when considered together with the clinical record
as a whole, including reports of past private and VA
treatment, and reports of VA examinations in 1995 and
subsequent medical opinions in June and August 1999. These
records show no such relationship between the gunshot wound
disability and the veteran's cardiovascular disorders. The
Board particularly notes private treatment records from 1972
to 1995, which pertain to treatment for various disorders
including the cardiovascular disorders. These records do not
contain any evidence relating in any way the service-
connected gunshot wound disabilities to the veteran's
atherosclerotic cardiovascular and cerebrovascular disease,
or to his arteriosclerotic peripheral vascular disease.
In Dr. McMullen's March 1997 statement, he stated that he
thought it possible that additional stress, caused by the
veteran's service connected disability, lead to or aggravated
the heart problems. In Dr. Bauer's March 1997 statement he
stated that he could not offer his opinion with certainty as
to a relationship, but that it was reasonable to assume some
degree of cause and effect. Service connection, however, may
not be predicated on a resort to speculation or remote
possibility as with these opinions. 38 C.F.R. § 3.102
(1996); see Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992)
(service connection claim not well grounded where only
evidence supporting the claim was a letter from a physician
indicating that veteran's death "may or may not" have been
averted if medical personnel could have effectively intubated
the veteran; such evidence held to be speculative); Obert v.
Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that
the veteran may have been having some symptoms of multiple
sclerosis for many years prior to the date of diagnosis
deemed speculative). The Board finds these statements to be
speculative and thus, they may not fulfill the requirement of
competent medical evidence to establish a causal nexus
between the veteran's service connected disability and the
cause of his death. The Board notes further that these
opinions conflict with the preponderance of the evidence,
including treatment records over many years, which show
alternative etiologies and no such nexus with the disorders
causing the veteran's death.
Dr. Bauer has also opined that the veteran's service-
connected gunshot wound disabilities caused claudication in
the right lower extremity, which in turn caused stress that
contributed to the veteran's heart disease and cardiac arrest
in April 1995.
Again, however, this opinion conflicts with the preponderance
of the clinical evidence. On review of the clinical records
proximately associated with treatment of cardiovascular and
hypertension disorders, there are no opinions or findings to
indicate an etiological nexus between those disorders and the
veteran's service-connected gunshot wound disabilities.
In contrast, the two VA medical opinions provided in June and
August 1999 indicate that the respective examiners reviewed
the clinical record in the claims file, including the
favorable opinions discussed above; and provided opinions
consistent with the clinical history of the veteran's various
disorders. The June 1999 cardiovascular opinion determined
that the veteran had atherosclerotic cardiovascular and
cerebrovascular disease, as well as arteriosclerotic
peripheral vascular disease; for which the major risk factors
were family predisposition, smoking, hypercholesterolemia,
diabetes and systemic hypertension. The examiner opined that
the notion of a nexus between the gunshot wound disability
and the cardiovascular disorders could not be excluded, but
was speculative and could not be directly proven. Moreover
in his opinion, any such stress would not be directly
responsible for development of the circulatory and
cardiovascular diseases, and would only be a marginal
contributory factor. On this basis, he opined that the
service connected right peroneal nerve injury and/or gunshot
wound scars did not contribute substantially and materially
to the cause of the veteran's death with respect to the
pertinent cardiovascular conditions.
The August 1999 VA medical opinion also reviewed the clinical
record and found no relationship between the vascular
occlusion and the inservice injury. Rather this opinion was
that the veteran developed a vascular problem of a cerebral
and cardiac etiology, unrelated to service-connected
disability.
On review, the Board finds these two opinions unequivocal and
consistent with the clinical treatment record as a whole,
particularly the record of treatment for the cardiovascular
conditions during the veteran's life. The Board finds these
opinions more probative than the favorable opinions, which
were provided only proximate to the terminus events
associated with the veteran's death, and inconsistent with
the treatment and other records as a whole.
With respect to the appellant's assertion as to the cause of
the veteran's death, the question of whether a disability is
present is one which requires skill in diagnosis, and
questions involving diagnostic skills must be made by medical
experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay
persons are not competent to offer medical opinions, and do
not provide a sound basis for establishing service
connection.
In conclusion, the Board finds that the preponderance of the
evidence is against the appellant's claim for service
connection for the cause of the veteran's death. In reaching
this decision, the Board has considered the doctrine of
reasonable doubt. However, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 53-56 (1990).
Dependents' Educational Assistance
Dependents' educational assistance benefits are payable to
the surviving spouse of a veteran, if the veteran was
discharged from service under conditions other than
dishonorable and a permanent total service-connected
disability was in existence at the date of the veteran's
death, or the veteran died as a result of a service-connected
disability. 38 U.S.C.A. § 3501 (West 1991); 38 C.F.R. §§
3.807, 21.3020, 21.3021 (1998).
In the present case, the evidence of record does not reveal
that the veteran died of a service-connected disability, or
had a permanent and total service-connected disability that
was in existence at the date of his death. Thus, the basic
requirements for survivors' and dependents' educational
assistance benefits have not been met, and the appellant's
claim must be denied. See 38 U.S.C.A. § 3501; 38 C.F.R. §§
3.807, 21.3020, 21.3021. Where, as in this case, the law and
not the evidence is dispositive, the appeal must be
terminated or denied as without legal merit. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Service connection for the cause of the veteran's death is
denied.
There is no legal basis for entitlement to dependents'
educational assistance, pursuant to Chapter 35, Title 38,
United States Code, and that claim is denied.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals